Friday, March 09, 2012
Ind. Courts - "David Camm attorneys ask that prosecutor be barred from helping replacement"
The legal wrangling over how much involvement Floyd County Prosecutor Keith Henderson may have in a third trial of David Camm did not end when the Indiana Court of Appeals ordered Henderson off the case because of a conflict of interest.
A hearing will be held April 18 on a motion by Camm’s attorneys asking that Henderson be barred from helping Special Prosecutor Stanley Levco, who was appointed to replace him.
They want Henderson to merely hand the files to Levco and then step aside. * * *
Special Judge Jonathan Dartt last month ordered Henderson’s office to transfer the case file to Levco and to “fully cooperate in his review and investigation of the file and this case,” according to the motion by Camm attorneys Stacy Uliana and Richard Kammen.
They argue that Dartt’s order goes against the law of the case and “the spirit of the Indiana special prosecutor statute.”
Permitting Henderson to consult and advise with Levco would allow the banned prosecutor “to inject his tainted perceptions and thus his conflict into the third prosecution” of the former Indiana State Police trooper, the Camm motion says.
In a brief interview, Levco said he would contest the motion. He declined to say how much help from Henderson he might be seeking. * * *
Camm’s attorneys request that no current or former employees of Henderson’s office be allowed to consult with Levco or his staff “regarding any facet of trial strategy.” They also ask that Henderson be prohibited from sharing with Levco the manuscript of his book.
Law - "The Coming Crash in Legal Education: How We Got There, and Where We Go Now."
From the Volokh Conspiracy, a review by Kenneth Anderson of a new paper titled "The Coming Crash in Legal Education: How We Got There, and Where We Go Now. ." According to the review, only if you are "sitting as a student or professor at one of the T-14 schools" will this paper not predict very bad times ahead. BTW, "T-14" means the top 14 first tier schools. No Indiana law schools are in the T-14.
Ind. Gov't. - "'[HEADLINE REMOVED]"
A new story posted this afternoon to the South Bend Tribune website, reported by Virginia Black and Mary Kate Malone, begins:
[ILB update on March 10th] The link no longer works because the South Bend Tribune was required to remove the story. For why, see this ILB post from today. The ILB has removed, for now, all quotes from the SBT story (including the headline) except for this 5th paragraph:
A judge ruled in The Tribune’s favor in a public records request opposed by DCS attorneys for copies of the hotline recordings and transcripts involving the ... death of XXXXXXX. The files were released to The Tribune this week.
Ind. Decisions - A second Supreme Court opinion today
In Indiana Department of State Revenue v. Rent-A-Center East, Inc., a 7-page, 5-0 opinion, Chief Justice Shepard writes:
The Indiana Department of State Revenue conducted an audit of a taxpayer corporation, concluded that the corporation’s 2003 tax return did not fairly represent its income from Indiana sources, and proposed an assessment of additional tax liability. On the corporation’s appeal of the Department’s final determination, the Indiana Tax Court granted the corporation’s motion for summary judgment. We reverse and remand. * * *
The Tax Court required additional designated evidence, beyond the proposed assessment, in order for the Department to make its prima facie showing under Trial Rule 56(C). Because this was error, we reverse and remand so that the Tax Court may consider the motions for summary judgment on their merits in light of all the designated evidence the parties may tender.
Ind. Decisions - Supreme Court decides one today
In R.L. Turner Corporation v. Town of Brownsburg, a 15-page, 3-2 opinion, Chief Justice Shepard writes:
The trial court granted a petition for attorneys’ fees in this case after it dismissed appellant R.L. Turner Corp.’s suit against the Town of Brownsburg. Turner has contended, principally, that the court “had no jurisdiction” to act once the dismissal had occurred. This misapprehends the nature of jurisdiction. We affirm, as did the Court of Appeals. * * *
Sullivan and David, JJ., concur. Rucker, J., concurs in part and dissents in part with separate opinion in which Dickson, J., joins.
Ind. Decisions - 7th Circuit decides one Indiana case today
In U.S. v. Raupp (SD Ind., Pratt), a 22-page, 2-1 opinion (including a dissent beginning on p. 10 of 22), Chief Judge Easterbrook writes:
Anthony Raupp pleaded guilty to possessing a firearm despite his status as a felon. 18 U.S.C. §922(g)(1). The district court concluded that Raupp is a “career offender” under the Sentencing Guidelines because he has at least two other convictions for crimes of violence. U.S.S.G. §4B1.1. This appeal, from the sentence of 100 months’ imprisonment, presents a single question: Whether a conspiracy to commit robbery is a “crime of violence” under the Guidelines.
Robbery in Indiana is a “crime of violence” under the Guidelines and a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. §924(e). See United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005). Raupp was convicted under Ind. Code §35-41-5-2 of conspiring to violate Ind. Code §35-42-5-1, Indiana’s robbery statute. An application note to U.S.S.G. §4B1.2, which defines the phrase “crime of violence”, tells us that an inchoate offense such as conspiracy is a “crime of violence” when the underlying crime is one. This note reads: “ ‘Crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” That disposes of this appeal, as far as the Sentencing Commission is concerned.
Raupp asks us to ignore the application note. He contends that it has been superseded by Begay v. United States, 553 U.S. 137 (2008), and later decisions. * * *
Raupp was free to contend that a conviction for conspiracy to commit robbery does not imply the same level of dangerousness as a conviction for robbery, and to seek a lower sentence on that account. But he does not assert that the district judge misunderstood the extent of her discretion or exercised it unreasonably. His sole contention is that district judges must ignore the first application note to §4B1.2, and that contention does not carry the day. Affirmed.
Judge Woods, dissenting: [concludes] When an agency like the Sentencing Commission uses a regulation as a springboard for an “interpretation” that goes beyond the boundaries of the original regulation, Auer and Stinson tell us that it has gone too far. That is exactly what the Sentencing Commission did here, when it decided that the phrase “presents a serious potential risk of physical injury to another” could be stretched to include Indiana’s inchoate offense of conspiracy to commit robbery. In my opinion, it cannot, and so I would find that Raupp is entitled to be resentenced without being classified as a career offender. I therefore respectfully dissent.
Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
NFP criminal opinions today (1):
Ind. Law - Last year's vetoed forfeiture bill is on the Senate calendar today for override vote
Here is today's calendar, the bill is SEA 215-2011.
Here is the Governor's veto message from 2011:
By the authority vested in me as Governor of Indiana, under the provisions of Article 5, Section 14, of the Constitution of the State of Indiana, I do hereby veto Senate Enrolled Act 215, enacted during the regular session of the 117th General Assembly, as violative of the Indiana Constitution, which provides that the proceeds from “all forfeitures” shall go to the Common School fund.For background, begin with these ILB entries:
The Indiana Supreme Court, on April 27, reinforced that point, possibly excepting the “limited diversion” of the actual expenses of obtaining those proceeds. Fairness to the General Assembly requires noting that legislators did not have the benefit of the court’s opinion, which was issued in the session’s final days.
This bill would take more than ninety cents of every dollar collected through forfeiture for the “expense of collection” rather than sending it to the Common School fund. That is unwarranted as policy and constitutionally unacceptable in light of the Supreme Court’s recent guidance and the plain language of Article 8, Section 2 of the Indiana Constitution.
- Ind. Gov't. - More on: Governor vetoes forfeiture bill
"After veto, forfeiture law remains unclear" is the headline to this long story in this morning's Indianapolis Star by Heather Gillers and Tim Evans. (ILB: For background, see this very long Nov. 14, 2010 investigative story by these reporters, plus...
Posted in The Indiana Law Blog on May 14, 2011 10:32 AM
- Ind. Gov't. - Governor vetoes forfeiture bill [Updated]
Here is the veto message on SEA 215:By the authority vested in me as Governor of Indiana, under the provisions of Article 5, Section 14, of the Constitution of the State of Indiana, I do hereby veto Senate Enrolled...
Posted in The Indiana Law Blog on May 13, 2011 10:16 AM
- Ind. Decisions - Still more on: Supreme Court decides civil forfeiture case
Wednesday's decision by the Supreme Court in Martin Serrano v. State of Indiana and the City of Fort Wayne (earlier ILB entries here and here), and particularly the dicta in footnote 3, is the focus of an Indianapolis Star a...
Posted in The Indiana Law Blog on April 29, 2011 06:31 AM
Ind. Gov't. - "Lawmakers dropping Rockport issue as session nears its end"
So reported Eric Bradner, the Evansville Courier & Press statehouse reporter who has been following this issue closely, yesterday afternoon. The lengthy story begins:
Developers of the Rockport, Ind. coal-to-gas plant do not need state lawmakers’ help to get a 20-year, $120 million tax credit, after all.For background, start with this March 4th ILB entry.
Instead, the Indiana Department of Revenue – an agency under the watch of Gov. Mitch Daniels, a champion of the $2.6 billion plant – will rule on whether the tax credit applies. The agency’s likely answer: Yes.
It’s a work-around to avoid asking reticent legislators to once again change the law to help push forward a plant that Daniels calls a great deal, but Vectren Corp. and other Indiana utilities say will drive ratepayers’ bills upward.
Key Republican fiscal leaders said the Daniels administration had opted to try for that “administrative fix” to forestall potential lawsuits over the tax credit, instead of pressing lawmakers on the issue as the 2012 legislative session reaches its end.
Senate Appropriations Committee Chairman Luke Kenley, R-Noblesville, said legislation related to the tax credit won’t make its way into a bill.
Ind. Courts - Still more on: What has become of the State-IBM trial in Marion Superior Court?
The design of a failed plan to modernize Indiana's welfare system has become the hot potato at a weeks-long trial in Marion Superior Court.The lengthy bench trial is presided over by Marion Superior Court Judge David Dreyer.
At issue is whether the state still owes IBM millions for helping it create the billion-dollar system, or whether IBM should refund some of the more than $400 million the state paid.
On Thursday, IBM tried to use testimony by Earl Goode, Gov. Mitch Daniels' chief of staff, to show that the state told IBM how it wanted the system to work and that IBM simply followed the state's orders.
"The state was in complete control of the situation from day one," IBM attorney Steve McCormick said during a break in testimony. "They knew about issues that came up. They expected issues to come up. They had workers in every office. They could see what was going on." * * *
Goode, who was chairman of a committee that reviewed IBM's proposal for the project, said the committee made several suggestions on how to implement the new system. But the proposal was IBM's, he said, and the company didn't follow the state's suggestions -- including one that called for more staff members to work with people who were having trouble with the automated system or didn't want to use it.
"We really did believe that . . . we needed to have a state-of-the-art, modern technology in this part of our division of family services, but we also wanted to be very user-friendly and be very accessible to all the folks that want . . . our services," Goode said after his testimony. "The original proposal was much more technology-centric as opposed to people-centric."
Had IBM followed the state's suggestions, it would have ended up with a system similar to the hybrid one the state now uses, said attorney Peter Rusthoven, who is representing Indiana's Family and Social Services Administration in the suit.
The hybrid system, which allows people to choose whether to use an automated system or speak with a staff member, is working well, Rusthoven said.
The state will continue to present evidence and witnesses for several days. IBM's witnesses will follow. The trial is scheduled to last up to six weeks.